Sidebilder
PDF
ePub

under different circumstances, as to what violation of law on the part of the plaintiff would bar his action in a court of justice, and leave him remediless in the hands of an over-reaching and dishonest antagonist; and the views there expressed are not without their relevancy and adaptation to the question as here presented. In that case, this court adopted the rule of law as settled in Massachusetts, favoring the remedy of the plaintiff, against the opposite rule sustained by the adjudications in some of the other States; and consistency of decision seems now clearly to require that our action should be reserved with respect to the rule established by the cases here referred to. The inconsistency upon general principle between these decisions of the same learned court and those there relied upon and adopted, will, we think, be readily perceived and conceded when carefully examined and considered in connection with each other.

The other question presented on the motion for a nonsuit, and which the court below did not decide, but which has been argued here, is one of more doubt and difficulty to our minds. It is whether the plaintiff was guilty of contributory negligence in permitting so many cattle to go upon the bridge at one time. Το sustain the nonsuit on this ground, it is necessary for us to look at the facts in the most favorable light possible for the plaintiff, in which the jury would have been at liberty to find them, and then to say that there was no evidence which would have justified a verdict in his favor, or such a clear and decided preponderance of evidence against him as would have required the court to set aside a verdict finding to the contrary. This court is not sufficiently familiar with the modes of constructing and using bridges upon country highways, the degree of strength required to render them ordinarily and reasonably safe and passable, the weight which they are expected or required to sustain, the care necessary in passing over them, and especially with herds of cattle or other animals, to say, with confidence in the correctness of its own judgment, upon the evidence before it, that the plaintiff was guilty of such negligence. The evidence given throws little or no light upon these points, necessary to the formation of a correct judgment; and they are matters upon the evidence, when in, more properly to be considered by the jury, unless the evidence should be such, within the rule above stated, as to make it the duty of the court to withdraw them from the consideration of

the jury, and itself to determine the legal rights of the parties upon the truth of the facts thus assumed to be indisputably shown.

By the court. Judgment reversed, and a venire de novo awarded.

Ground of Doctrine of Contributory the plaintiff recover where the evidence Negligence. Speaking in general falls short of showing that the defendterms, it is a defence to an action in ant's act or omission caused, or was tort that the negligence of the plaintiff adequate to cause, the injury. (As to contributed to produce the injury. And the contributory acts of strangers, see the reason of this, as has already been ante, pp. 608 et seq.) intimated (ante, p. 609), is to be explained upon the legal principles of causation. There is nothing peculiar in the doctrine of contributory negligence. The law makes men liable in tort for those wrongs alone which they have caused, either personally or by another under their power or authority. If the defendant (or his agent or servant) have not caused the damage, he is not liable; and it is part of the plaintiff's case to prove that the defendant caused the harm of which the complaint is made. Now, if there intervened between the wrongful act or omission of the defendant and the injury sustained by the plaintiff a legal fault of the latter which contributed to produce this injury, it follows that the misfortune might not have happened but for that fault; and hence the plaintiff cannot prove that the defendant caused the harm, and cannot recover.

In some cases the evidence may be such that the plaintiff cannot recover even when the defendant's fault was an adequate cause to produce the injury without the plaintiff's negligence, as in cases of collision and the like where the fault on each side is contemporaneous. See Murphy v. Deane, 101 Mass. 455; infra, p. 724, where the point is more fully considered. But in no case can

On the other hand, conditions must not be confounded with causes. Even as to violations of law of which the plaintiff may be guilty at the time of receiving the injury, it must, according to reason as well as authority, be considered whether the conduct of the plaintiff had a natural tendency, such as exists between cause and effect, to throw him into the danger which the defendant left exposed. If it had not, it did not in any proper sense contribute to the injury. It is not enough that the plaintiff was violating the rights of the public, as in Sabbath-breaking or gambling; the law has a punishment of its own for that, which cannot be made use of by a citizen for his own purposes. It is only where the plaintiff's violation of duty consists in setting in motion the wrongful act of the defendant, or in infringing upon the defendant's rights in direct connection with the injury, that the plaintiff's act can be regarded as an intervening cause.

The above are the doctrines of the principal case, Sutton v. Wauwatosa; and that case indicates the settled current, or at least the strong tendency, of the late cases. Even in Massachusetts, where there has been a contrary set of authorities in cases under the Sunday laws (see supra, p. 712), the

court have to some extent receded from

their former position. Thus, in Hall v. Corcoran, 107 Mass. 251, the case of Gregg v. Wyman, 4 Cush. 322, in which the defendant escaped liability for killing the plaintiff's horse, on the ground that it had been let to him on Sunday, was distinctly overruled.

So, too, it has been decided that one who is walking on the highway on Sunday, simply for exercise and "to take the air," may recover against a town for negligence whereby the plaintiff sustains injury; though the Sunday law imposes a fine upon persons travelling on that day, except in cases of necessity or charity. Hamilton v. Boston, 14 Allen, 475. But the court held, in a learned opinion, that the plaintiff was not travelling, within the meaning of the statute; and Bosworth v. Swansey, 10 Met. 363, and Jones v. Andover, 10 Allen, 18, were cited as law.

So, also, it has been held by the same court that one who had been illegally travelling on the Lord's day, and stopped at a hotel, leaving a buffalo robe in charge of the landlord's servant, could recover for its loss during the night. Cox v. Cook, 14 Allen, 165.

However, the doctrine of Bosworth v. Swansey was upheld and applied in Stanton v. Middlesex R. Co., 14 Allen, 485, and during the present year in Connolly v. Boston, 117 Mass. 64. See also Maynard v. Boston & Maine R. Co., 115 Mass. 458, where also the illegal act was not, properly speaking, contributory; Eames v. Salem & L. R. Co., 98 Mass. 560; McDonnell v. Pittsfield, &c. R. Corp., 115 Mass. 564.

Since most of the above cases it has been held that the question whether the plaintiff, under the Sunday law,

was travelling from necessity or charity is for the jury. And it was decided that the fact that the exercises of a spiritualist camp-meeting included a show to which an admittance fee of twenty-five cents was charged, and that some of the speakers declared that they would throw away the Bible in their search for truth, were not conclusive that the plaintiff, who had gone on Sunday to attend the meeting, had done so unlawfully. Feital v. Middlesex R. Co., 109 Mass. 398. See, further, Gorman v. Lowell, 117 Mass. 65.

In Murphy v. Deane, 101 Mass. 455, it was conceded by the court that negligence on the part of the plaintiff would not preclude a recovery for the defendant's negligence unless it directly contributed to produce the injury. Now negligence is sometimes unlawful, equally with Sabbath-breaking, as in the case of careless driving, contrary to a town ordinance. If, then, the rule in Murphy v. Deane cover this case, and is to be adhered to, the other rule must in consistency give way. Suppose, again, the plaintiff were injured while cudgelling his horse (on his own premises), contrary to the statute, and while doing so should be injured by the defendant's negligence, when if he had been elsewhere he would not have been hurt; would the court hold that the illegality of the plaintiff's conduct per se precluded recovery?

Upon the principle above set forth, one who becomes paralyzed by fear through the misconduct of the defendant, and, while in such a state of mind and owing to it, rushes into danger and is hurt, is not guilty of contributory negligence. The defendant's unlawful act caused the fear, and what happened afterwards was but the natural sequence of effect following cause. And so we

find the cases. Coulter v. American Exp. Co., 5 Lans. 67, s. c. 56 N. Y. 585; Indianapolis, &c. R. Co. v. Carr, 35 Ind. 510; Illinois Central R. Co. v. Able, 59 Ill. 131; Frink v. Potter, 17 Ill. 406; Greenleaf v. Illinois Cent. R. Co., 29 Iowa, 47; Stokes v. Saltonstall, 13 Peters, 181; Buel v. New York Cent. R. Co., 31 N. Y. 314; Southwestern R. Co. v. Paulk, 24 Ga. 356; Johnson v. West Chester & P. R. Co., 70 Penn. St. 357; Galena & C. R. Co. v. Yarwood, 17 Ill. 509; Snow v. Housatonic R. Co., 8 Allen, 441; Sears v. Dennis, 105 Mass. 310; Babson v. Rockport, 101 Mass. 93; ante, p. 609.

But whether the fright or confusion was caused by the defendant is a question for the jury, and perhaps, too, whether it was reasonable in the particular person. Johnson v. West Chester & P. R. Co.; Galena & C. R. Co. v. Yarwood, supra. And what would be reasonable in a child might not be in a man, and so of other cases. Filer v. New York Cent. R. Co., 49 N. Y. 47. (As to questions for the jury, see ante, p. 589. And as to what constitutes negligence, consult the same note, where the rules are stated for the determination of questions of the existence of negligence, as a matter of law. As to the law concerning deaf and blind persons, see Illinois Central R. Co. v. Buckner, 28 Ill. 299; Chicago & R. R. Co. v. McKean, 40 Ill. 218; Sleeper v. Sandown, 52 N. H. 244. As to drunken persons, Cassidy v. Stockbridge, 21 Vt. 391; Alger v. Lowell, 3 Allen, 402; Chicago & A. R. Co. v. Gregory, 58 Ill. 226; Thorp v. Brookfield, 36 Conn. 320; Toledo, &c. R. Co. v. Riley, 47 Ill. 514.)

There are some cases which apparently present exceptions to the principle of causation, even as above

explained. We refer to cases like Bird v. Holbrook, 4 Bing. 628, elsewhere noticed, in which it has been held that even a trespasser whose act has truly contributed to the injury of which he complains may sometimes recover damages. But these cases stand upon the ground that the defendant has been guilty of an enormous and inhuman act, beside which the slight trespass of the plaintiff is not worthy of consideration. The defendant has knowingly and intentionally caused the plaintiff to be maimed for venturing upon his premises on a very innocent errand. The defendant would have been no more guilty had he himself sprung the trap or engine upon the plaintiff's entry; and the trespass would be as properly the cause of the injury in this case as in the other. But, if the plaintiff had fallen into a well which had been carelessly left uncovered, the occupant of the premises would not have been liable. See ante, p. 697.

As to the proper mode of instructing the jury in cases of contributory negligence, the case of Tuff v. Warman, 5 Com. B. N. s. 573, has of late been generally followed. See Hoffman v. Union Ferry Co., 47 N. Y. 176; New Jersey Express Co. v. Nichols, 33 N. J. 435; Scott v. Dublin & W. Ry. Co. 11 Irish C. L. 377; London, B., &c., Ry. Co. v. Walton, 14 Law T. N. s. 253. (As to the proper province of the court and jury, the rules of law are not different from those stated ante, p. 509. Several of the cases there cited were cases of contributory negligence.)

In the above case of Tuff v. Warman, the court laid down the following as the proper question for the jury: "Whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether

66

[ocr errors]

the plaintiff himself so far contributed that it might have occurred from the to the misfortune by his own negli- conduct of either without the fault of gence or want of ordinary and common the other, there would then be a case of care and caution that, but for such contributory negligence, for the consenegligence or want of ordinary care quences of which neither could recover and caution on his part, the misfor- from the other. But upon the statement tune would not have happened." In quoted [supra] from Tuff v. Warman, the first case," say the court, "the neither would be disentitled,' and plaintiff would be entitled to recover; therefore both could recover, if both in the latter, not, as but for his own suffered injury, each from the other. fault the misfortune would not have Every case in which the proof fails to happened. Mere negligence or want show, or leaves it in doubt, which of of ordinary care or caution would not, two sufficient causes was the actual however, disentitle him to recover, un- proximate cause of the injury, is practiless it were such that, but for that cally such a case. It is manifest from negligence or want of ordinary care this illustration that, as a definition of and caution, the misfortune could not the limits of the right to recover in such have happened; nor if the defendant cases, the proposition must be logically might, by the exercise of care on his incorrect. Eliminating negatives from part, have avoided the consequences of the first branch of the proposition, it is the neglect or carelessness of the plain- that a plaintiff may recover in such tiff." This, it was added, appeared to cases unless the misfortune could not be the result deducible from the opinion have happened but for his own negliof the judges in Butterfield v. Forrester, gence. This, as we have seen, being 11 East, 60; Bridge v. Grand Junction stated affirmatively, is too broad and Ry. Co., 3 Mees. & W. 246; Davies v. not correct, although its supplement Mann, 10 Mees. & W. 548; Dowell v. or negative counterpart is correct as General Steam Nav. Co., 5 El. & B. far as it extends; to wit, that he cannot 206. recover if the misfortune could not have happened but for his own negligence."

[ocr errors]

66

Well-founded doubts have been expressed of the correctness of such instructions as a universal formula. Under it a plaintiff might in some cases recover, contrary to all principle. If it should appear," said Wells, J., of this case, in Murphy v. Deane, 101 Mass. 455, 464, that the negligence of the defendant was an adequate cause to produce the result, the plaintiff must recover, even though he was himself equally, or even to a greater degree than the defendant, in fault. If the case can be supposed in which both parties were equally in fault, the fault of each being equally proximate, direct, and adequate to produce the result, so

The learned judge thought that the rule, as stated by Pollock, C. B., in Greenland v. Chaplin, 5 Ex. 248, was accurate, except that it omitted the consideration of the burden of proof (as to which see infra). The rule referred to was that, when the negli gence of the party injured did not in any degree contribute to the immediate cause of the accident, such negligence ought not to be set up as an answer to the action. See Dowell v. General Steam Navigation Co., 5 El. & B. 195; Bridge v. Grand Junction Ry. Co., 3 Mees. & W. 244; Johnson v. Hudson River R. Co., 20 N. Y. 65; Trow v.

« ForrigeFortsett »